Law Report: 4 November 1997; Books found with obscene books liable to forfeiture

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Anything found with an item liable to forfeiture under section 141(1) of the Customs & Excise Management Act 1979 was itself liable to forfeiture, subject to the discretion of Customs & Excise. A large quantity of books found mixed or packed with 16 books which were considered to be indecent or obscene, and thus liable to forfeiture, were accordingly themselves liable to be forfeit.

Travell v Commissioners of Customs & Excise; Queen's Bench Divisional Court (Lord Justice Brooke and Mr Justice Gage) 29 October 1997

The Divisional Court dismissed the appeal of Richard John Travell by way of case stated from a decision of Southwark Crown Court, allowing an appeal by the Commissioners of Customs & Excise against the refusal by Thames Magistrates' Court to condemn 374 indecent magazines pursuant to section 139 of the Customs & Excise Management Act 1979.

Customs & Excise had intercepted a package, containing a book entitled Erotic Experiences of Girls and Men, sent from the Netherlands to the appellant at his home address. Customs officers, armed with a search warrant, entered the appellant's flat and seized a large quantity of material which was considered to be indecent or obscene. Sixteen books were found in the hallway, and the other items were found stored all over the flat.

The appellant in person; Nigel Lithman QC and Richard A Matthews (Solicitor, Customs & Excise) for the respondent.

Lord Justice Brooke, delivering the reserved judgment of the court, said that the Crown Court had been satisfied that the 16 books found in the hallway were indecent and therefore liable to forfeiture under section 42 of the Customs Consolidation Act 1876 and section 49(1)(b) of the 1979 Act.

The issue which arose on the appeal was whether the Crown Court had been correct in holding that 364 other books which were found mixed or packed with those 16 books were also liable to forfeiture pusuant to section 141(1) of the 1979 Act, which provided:

Without prejudice to any other provision of the Customs and Excise Acts 1979, where anything has become liable to forfeiture under the Customs and Excise Acts - (a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and (b) any other thing mixed, packed or found with the thing so liable shall also be liable to forfeiture.

The Crown Court had held that the two sub-sections of section 141 were to be read disjunctively, and that, therefore, anything found with items liable to forfeiture was itself liable to forfeiture, subject to the discretion of Customs & Excise not to require such forfeiture. The Crown Court had accepted that that was a very wide power, but considered that the integrity of Customs & Excise prevented its abuse.

The Crown Court's interpretation of section 141(1) was correct. Sections 139-143 of the 1979 Act, coupled with Schedule 3, contained privisions of general application when something was liable to forfeiture under the Customs & Excise Acts 1979. Section 1(1) of the Act showed that the term "the Customs & Excise Acts 1979" meant that Act, the Customs & Excise Duties (General Reliefs) Act 1979, the Alcoholic Liquor Duties Act 1979, the Hydrocarbon Oil Duties Act 1979 and the Tobacco Products Duty Act 1979. In addition, the Betting and Gaming Duties Act 1981 was prescribed to be construed as one with the 1979 Act. It followed that things which were liable to forfeiture under those Acts might include such items as gaming machines, light oil used in furnaces contrary to section 14(2) of the Hydrocarbon Duties Act, and illicit spirits mentioned in sections 13(5) and 31(5) of the Alcohol Liquor Duties Act.

Once that was understood, and it became clear that section 141 of the 1979 Act was not concerned only with Customs & Excise's power to seize goods being illicitly imported into this country, it was obvious that the draftsman could not have intended the two parts of section 141(1) to be read conjuctively. If a gaming machine was seized, the money found with it might also be seized under section 141(1)(b) without any need to find something else which was liable to forfeiture which might fall within the language of section 141(1)(a). The appeal would be dismissed.

- Kate O'Hanlon, Barrister